www.opensource.org/sco-vs-ibm.html
OSI is one of the principal advocacy organizations of the open-source community, which is alleged in SCO/Caldera's complaint to have been beneficiary of tortious and illegal behavior by IBM. The principal author of this position paper (Raymond) has been a Unix developer since 1982, is a technical specialist in systems programming technologies related to those at issue, and is a historian whose writings on the open-source community and Unix ( 30 TNHD , 31 CATB , 32 TAOUP ) are widely considered authoritative both within the community and outside it. He has been since 1997 one of the leading theorists and (both in his individual capacity and as the president of OSI) one of the principal spokespersons/ambassadors for the open-source community. While the authors are affiliated with the Linux community, our argument is also motivated by larger concerns. Unix, Linux, and the open-source movement are vital components of the Internet and the World Wide Web. SCO/Caldera's attempt to assert proprietary control of these technologies is an indirect but potent threat against the Internet and the culture that maintains it. What is at stake here is not just the disposition of a particular volume of computer code, but what amounts to a power grab against the future. This document, originally proposed as a draft brief of amicus curiae, has been endorsed as an OSI position paper by OSI's Board of Directors. The Board has concluded on advice of counsel that OSI cannot seek amicus status in advance of pleadings. The option to seek amicus status at a future time remains open. SCO/Caldera's complaint against IBM disparaged the work of thousands of individual open-source contributors. These contributors feel themselves personally and professionally wronged by SCO/Caldera's unfounded allegations. In the tradition of the open-source movement, hundreds of individuals are now sending in their patches to help inform and evolve the OSI's position. Note to persons who read the original Response paper: though the amended complaint has changed substantially (as we cover below) remarkably little in this paper had to be tweaked in order to cope with the changes in SCO's story. Most of the paragraphs we called out in the original version have different numbers but the same content. One substantive change is that because the case is now in Federal rather than state court, we can now 34 request a finding in some general IP-law issues relevant to this case, including confirming the validity of the GPL. Scope of the position paper This position paper is written in specific response to SCO/Caldera's amended complaint ^ 35 1 filed on the 16th of June 2003. It is not within OSI's competence or knowledge to address the specifics of the business relationship between SCO/Caldera and IBM, or the terms of their contract. It is, however, very much within our competence to observe that SCO/Caldera's complaint depends critically on certain historical and technical assertions which are materially false and (apparently quite intentionally) misleading. Unlike SCO/Caldera's complaint, we have provided direct hyperlinks to browseable versions of all the sources which back our facts. In this position paper, we focus on the following allegations, and show that they are incorrect or fundamentally misleading: Paragraph 1. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. This re-design is not technologically feasible or even possible at the enterprise level without a high degree of design coordination, access to expensive and sophisticated design and testing equipment; Indeed, UNIX was able to achieve its status as the premiere operating system only after decades of hard work, beginning with the finest computer scientists at AT&T Bell Laboratories, plaintiff's predecessor in interest. It is notable that the amended complaint differs substantially from the 36 original; SCO had to change its story because some of the falsehoods in the original were too readily exposed. Where appropriate, we cite passages of the old complaint to show the divergence. Technically-inclined readers will probably wonder why various apparently relevant topics (such as Minix, or the GNU project, or the Bell Labs research versions, or other proprietary Unixes) are not covered. Please remember that this document is not a tutorial in Unix history; Historical and technical background The meaning of Unix' The falseness of SCO/Caldera's allegations is partly cloaked by the fact that their complaint uses the term "Unix" in three different ways. Among technical people and computer programmers, "Unix" describes a family of computer operating systems with common design elements, all patterned on (but not necessarily derivative works of) the ancestral Unix invented at Bell Labs in 1969. As SCO/Caldera observes in its complaint, Unix operating systems dominate serious computing, and have for more than twenty years. There have been hundreds of different Unixes in this sense, exhibiting variations analogous to dialects within a language. Fortunately, only a handful of the principal dialects are relevant to this lawsuit. When we wish to be clear that this is the definition we are using, we will refer to "Unix-family" operating systems. Use of the term Unix' to describe any Unix-family operating system was common before SCO/Caldera's acquisition of the historical Unix codebase in 1995; AT&T's lawyers strove against it in vain as far back as the early 1980s. When we use the term Unix' without qualification elsewhere in this paper, this is the sense we intend. The term "Unix" is sometimes also used (primarily by historians of computing) more strictly, to describe only those Unix-family operating systems which are derivative works of the original Bell Labs Unix. To avoid confusion, we shall call any operating system of this kind a "genetic Unix". Legally, the term "Unix" has been since 1994 a trademark of The Open Group^ 37 2 , a technical standards organization, and describes any operating system (whether genetic-Unix or not) that has been verified to conform to the published Unix standard. We will refer to an operating system of this kind as a "trademark Unix". The required attribution is "UNIX is a registered trademark of The Open Group". Neither SCO/Caldera nor old SCO has ever owned the UNIX trademark. IBM neither requested nor required SCO's permission to call their AIX offering a Unix. That decision lies not with the adventitious owner of the historical Bell Labs source code, but with The Open Group. The Linux operating system is Unix-family and generally referred to as a Unix, but is neither a genetic Unix nor a trademark Unix. Linux was independently created by Linus Torvalds in 1991^ 39 4 , and most versions have not been put through the rather expensive process required to verify conformance with The Open Group standards. Linux and the advent of open-source programming SCO/Caldera's complaint cannot be understood without reference to a seismic shift now occurring in the software industry. The root of the shift lies in the approximate doubling of hardware capacity every eighteen months which has been the trend since the mid-1970s. This means that the typical complexity of software designed to fully utilize state-of-the-art hardware also doubles every eighteen months, escalating the difficulties of software engineering to previously unimagined levels. In the mid-1990s it began to be understood that the traditional production models for software were running out of steam, increasingly unable to produce an acceptably low defect rate at these escalating complexity levels. There was much talk of a "software crisis" and attempts to resolve it through various attempts at process improvement. These attempts at process improvement consisted largely of introducing more formality, rigor, centralization, and statistical monitoring into the software-development process. They had honorable precedents in the systematization of assembly-line manufacturing and industrial process control in the 20th century. But producing software is not like producing automobiles or soap flakes. The an...
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